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Nair v Ahmed [1920] FJLawRp 3; [1908-1925] 2 FLR 78 (26 November 1920)

[1920] 2 FLR 78

SUPREME COURT OF FIJI

Appellate Jurisdiction

Action No. 8, 1920

RAMA NAIR

v

AHMED.

1920, Nov. 26.

Information bad for duplicity - variance between evidence and information.

Held, information defective and at variance with evidence, but neither one or the other caused any embarrassment or prejudice to defendant, he being represented by counsel who raised no objection to the information, and proceeded with the defence; otherwise, if defendant lead been undefended, or counsel had applied for an adjournment and been refused.

Held, in these circumstances no substantial miscarriage of justice (see S. 3 of Appeals Ordinance 1903 as amended by Ordinance 14 of 1916).

C.S. DAVSON, CJ:- This is an appeal from a conviction under section 44 of Ordinance 5 of 1918 for harbouring the wife of an immigrant. Several witnesses called for the prosecution, but the only direct evidence of harbouring was that of the woman herself, of which there was some, though not very strong, corroboration. The District Commissioner was satisfied with their evidence and I am not prepared to interfere with his finding on the facts. I am, further, of opinion that the facts as found show a case of harbouring.

There were, however, two points which were relied on by appellant as grounds for quashing the conviction. The first is that the information was bad for duplicity in that it charged defendant with "harbouring at Koronubu and elsewhere." I agree that this was a defect in the information, but appellant was represented by counsel who, if his client had been misled, might have taken the objection and the information might have been dismissed or amended, an adjournment being granted to appellant if necessary (see section 14 of Ordinance 4 of 1876). He did not take this course and I do not think defendant suffered any embarrassment or prejudice (see R. v. Thomson 4 C. App. Rep., p. 260).

The second point is that while the information avers that the harbouring took place at Koronubu and elsewhere the evidence relates only to harbouring at Rarawai. Both places are within the jurisdiction of the District Commissioner, but, though this does not appear in the evidence, counsel agree that they are 7 or 8 miles apart, and it is certainly remarkable that the discrepancy was not noticed at the hearing. What I have said as to the first point applies to this. Appellant's counsel in face of the evidence given proceeded with his defence and asked neither for a dismissal nor for a postponement, but called evidence to contradict that for the prosecution. Here again I do not think appellant suffered any embarrassment or prejudice. If he had been undefended or if his counsel had asked for an adjournment on the ground of being taken by surprise and this had been refused I should have been prepared to quash the conviction; as it is, it appears to me that there has been no substantial miscarriage of justice and that this is a case in which I should give effect to the proviso which was added to section 3 of the Appeals Ordinance 1903 by Ordinance 14 of 1916.

I therefore dismiss the appeal except as regards the penalty which is the maximum allowed by law. I reduce the fine to £10 and the term of imprisonment to three months.

In the circumstances I order each party to pay his own costs.